United States v. Jose Pita-Mota

MEMORANDUM

Defendant Jose Luis Pita-Mota appeals his conviction and resulting sentence for conspiracy to distribute and possess with intent to distribute methamphetamine, in violation of 21 U.S.C. § 846 ; distribution and possession with intent to distribute methamphetamine, in violation of 21 U.S.C. § 841 ; being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922 (g), 924(a); and illegal reentry after removal, in violation of 8 U.S.C. § 1326 (a). We affirm.

1. We assume, without deciding, that in the circumstances of this case, the district court erred by failing to apply mitigating procedures to the dual fact-and-expert testimony of some of the government’s witnesses, and that this error was plain. See United States v. Freeman, 498 F.3d 893, 903-04 (9th Cir.2007) (describing the dangers of dual testimony). The assumed error did not affect Defendant’s substantial rights, however, because he has not shown “a reasonable probability that, but for the error claimed, the result of the proceeding would have been different.” United States v. Dominguez Benitez, 542 U.S. 74, 81-82 , 124 S.Ct. 2333 , 159 L.Ed.2d 157 (2004) (internal quotation marks and brackets…